In a Pennsylvania divorce, marital property is divided based on the rules of equitable distribution. This means property is divided "fairly", but not necessarily equally.

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In Pennsylvania, the term "equitable
distribution" refers to the process of dividing marital assets and debts.
If spouses can’t agree how to divide their property, they may end up in court,
where a judge will decide for them. This article provides an overview of how
property might be characterized and assigned in a divorce.

Separate Property

In Pennsylvania divorces, property is characterized one of two ways. Separate property is property that belongs to one spouse, and marital
property is property that’s owned jointly by the couple.

Separate property includes:

property acquired before the marriage (eg., a car
that was fully paid off before the marriage)

inheritances and gifts received during the
marriage

property excluded from the marital estate by a
valid prenuptial or postnuptial agreement, and

property acquired after separation.

Generally, Pennsylvania law allows separate (or “non-marital”)
property to escape the equitable distribution process. However, it’s important
to remember if separate property increases in value during the marriage, the
increase in the value may be considered a marital asset. Or, if spouses use non-marital
funds (eg., one spouse’s pre-marriage savings) for a common purpose, such as
purchasing a home during the marriage, those separate property funds used for
the down payment may become marital property.

Property disputes are very common in divorce, but
they often present complex legal issues and may require financial tracings:
matters that are best left to the experts. If your divorce involves a dispute
regarding the character of substantial property, you might want to contact an
experienced family law attorney that can advise you of your rights.

Marital Property

Assets and income acquired during the marriage
are presumed to be marital property. Some common examples include a home,
business, retirement accounts, investments, furniture, art, and cars purchased
or established during the marriage. And, title (the name under which property is owned) doesn't necessarily determine character. So, even
if property, such as a car, was placed in only one spouse's name, it will
generally be considered part of the marital estate if it was purchased during
the marriage.

Some assets may have both a marital and separate component (eg.,
a retirement account that was established before the marriage, but which
continued to grow during marriage). In that case, the separate value of the
asset should be excluded from the equitable distribution process.

Marital Debts

In addition to property, couples also need to
divide debts. A debt is considered “marital” if it was incurred after the date
of marriage and before the date of final separation. Marital debts include
items such as mortgages, loans, credit card balances, and tax obligations. A debt
may be considered marital even if it was incurred by only one of the spouses
during the marriage. If, for example, one spouse runs up a big credit card bill
for clothes or other items during the marriage, both spouses will be liable for
the payments.

Dividing Marital Assets and Debts

As stated above, equitable distribution is the
process of dividing marital assets and debts. Because Pennsylvania is an
equitable distribution state and not a community property state, its courts
divide marital property based upon principles of equity, or in other words,
what a judge thinks is fair. This does not necessarily mean that property will
be divided equally.

When making such decisions, courts may consider a
variety of factors, and can give them whatever weight they see fit.

Some of the factors that the court considers in
equitable distribution include:

the length of the marriage

whether either spouse was married previously

whether either spouse has significant non-marital
assets, including assets excluded by a prenuptial agreement

the spouses’ ages, health, and income(s)

whether either spouse contributed to the other's
increased earning potential (how much income a person could earn based on
education, job skills, and work history)

the standard of living established during the
marriage

the tax consequences of any award, and

whether either spouse will be serving as the
custodian of any minor children.

When making decisions about property,
Pennsylvania courts do not consider either spouses “fault” in causing the
divorce.

Marital Settlement Agreements

Although divorce may be emotional, most cases
don’t end up in trial. Spouses are usually able to negotiate and settle the
issues in their divorce, often with an attorney's help.

It may not be possible to predict how a judge
would decide the issues in your case, but an experienced attorney can advise
you of the possible results. Armed with that knowledge, couples often prefer to
reach their own agreements rather than endure the stress and expense of a
trial.

The terms of a divorce agreement should be memorialized
in a “marital settlement agreement” (“MSA”), which is a written contract
between spouses that resolves most or all of the issues in their divorce, such
as alimony, child custody, child support, and the division of property and
debts. The provisions of an MSA will become part of a court’s final judgment of
divorce.

If you’re going through a divorce and plan to
negotiate with your spouse, you may want to contact an experienced attorney
that can help you draft or review an MSA, and ensure that your rights are fully
protected.